Nomination of Barry W. Asheto the U.S. District Court for the Eastern District of

Louisiana Questions for the RecordSubmitted January 17, 2018

QUESTIONS FROM SENATOR FEINSTEIN

Would you describe your approach to constitutional interpretation to be “originalist”? If so, what does that mean to you? If not, how would you describe your approach?

In general, I believe that a judge asked to interpret any provision of the United States Constitution or other law should begin with the text of the provision at issue and then evaluate that text in light of relevant precedent. If confirmed as a district court judge, I would be bound by oath to interpret the Constitution by applying all precedents of the Supreme Court and the Fifth Circuit, without regard to any label assigned to my approach to constitutional interpretation. However, in my understanding, an "originalist" approach seeks to interpret constitutional provisions according to their original public meaning. See, e.g., District of Columbia v. Heller,554 U.S. 570, 581-87 (2008) (interpreting Second Amendment terms by using founding-era dictionaries and other sources); id. at 575-77 (observing that constitutional interpretation "excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation"). Where the Supreme Court and the Fifth Circuit have interpreted specific constitutional provisions by seeking to discern their original public meaning, I would fully and faithfully follow those precedents. See, e.g., Crawford v. Washington, 541 U.S. 36, 42-56 (2004) (interpreting Sixth Amendment's Confrontation Clause according tofounding-era understanding of English common law).

When is it appropriate for judges to consider legislative history in construing a statute?

As a general rule, in construing a statute, there is no need to go beyond its text when its meaning is clear and unambiguous. If the text alone does not provide a clear insight into the meaning of the statute, the judge has a number of tools available to aid in construing the statute, including, among others, the canons of statutory construction. However, it is my understanding that, according to governing Supreme Court precedent, courts may also have recourse to legislative history when the relevant statutory text is ambiguous. As a judge, I would fully and faithfully follow any binding precedents that relied on legislative history to construe a statutory provision.

Please respond with your views on the proper application of precedent by judges.

When, if ever, is it appropriate for a district court to depart from Supreme Court or the relevant circuit court’s precedent?

It is never appropriate for lower courts – including especially federal district courts

In Obergefell v. Hodges, the Supreme Court held that the Constitution guarantees same-sex couples the right to marry. Is the holding in Obergefell settled law?

Obergefell is a precedent of the Supreme Court and therefore binding on all lower federal courts. If confirmed as a district judge, I would apply it fully and faithfully.

In Justice Stevens’s dissent in District of Columbia v. Heller he wrote: “The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms.”

Do you agree with Justice Stevens? Why or why not?

As a nominee to a lower federal court, under the canons of judicial ethics, it would be inappropriate for me to express my personal views of agreement or disagreement with a particular Supreme Court opinion. Regardless, my personal views would have no bearing on my role in deciding the constitutionality of any particular government regulation of firearms. As with any other issue that might come before me, my role would be to decide such questions based on a full and faithful application of controlling precedent. With respect to the interpretation of the Second Amendment, the majority opinion in Heller is binding upon all lower courts and, if confirmed, I would apply that decision fully and faithfully.

Did Heller leave room for common-sense gun regulation?

The Supreme Court in Heller expressly stated that, "[l]ike most rights, the right secured by the Second Amendment is not unlimited," and the Court emphasized that "nothing in [the Court's] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."' District of Columbia v. Heller, 554 U.S. 570, 626-27 (2008). The Court added that "[w]e are aware of the problem of handgun violence in this country [and] [t]he Constitution leaves the District of Columbia a variety of tools for combating the problem, including some measures regulating handguns." Id. at 636. Heller is binding precedent of the Supreme Court, and I would follow it, as I would follow all precedent of the Supreme Court and the Fifth Circuit.

Did Heller, in finding an individual right to bear arms, depart from decades of Supreme Court precedent?

As a nominee to a lower federal court, it would be inappropriate for me to express my personal views on the question, and I understand that the majority

and dissent in that case had different views of it. Regardless, Heller is binding upon all lower courts, and if confirmed, I would apply that decision fully and faithfully, just as I would apply all binding Supreme Court precedent.

From 1994-2000, you represented the Tangipahoa Parish Board of Education and its members in a challenge to a “disclaimer” the Board required to be read before teaching evolution in public school classrooms. The disclaimer stated that the teaching of evolution “should be presented to inform students of the scientific concept and not intended to influence or dissuade the Biblical version of Creation or any other concept.” A federal district court struck down this “disclaimer” as a violation of the First Amendment’s Establishment Clause. The Fifth Circuit upheld the decision and the U.S. Supreme Court denied the petition for certiorari you filed.

Shortly after filing the petition for certiorari, you told a local newspaper that “[t]here are many scientists and others who view that evolution isn’t a proven fact, and if that’s so, and if the School Board teaches evolution only in terms of a theory that has explanatory power for this concept, then isn’t it better science to permit other opinions. . . than to exclude them?” (Craig Malisow, ACLU to oppose disclaimer petition before high court, THE DAILY STAR (Hammond, LA) (Apr. 19, 2000)).

a. In your view, how did the language of the disclaimer promote“better science”?

In the referenced interview, as the school board's counsel, I was expressing the view of my client that the disclaimer was consistent with the scientific method, in that it affirmed that the scientific theory of evolution would be taught in the public schools while also noting the existence of other concepts of the origin of life, and it expressly "urged [students] to exercise critical thinking and gather all information possible and closely examine each alternative toward forming an opinion." It would be inconsistent with my obligations as lawyer to client under the Rules of Professional Conduct to offer my personal views on the matter.

In the same interview, you stated that the “[t]he School Board feels strongly that it would like to make the classroom an environment in which every child will feel welcome.”

b. Were you concerned that in making explicit mention of one particularreligion in the “disclaimer,” the School Board would be unable to realizeits intent to make “every child” feel welcome in the classroom? Pleaseexplain your view.

In the referenced interview, as the school board's counsel, I was expressing the viewpoint of my client that the disclaimer would have assisted in making every child feel welcome in the school community without regard to their personal beliefs regarding the theory of evolution as an explanation of life's origins,

provision of certain limited chaplaincy and nursing functions.

c. If so, did you contribute to any of the guidelines, or was your approval ofany of them required for their adoption by the organization?

Not to my knowledge or recollection. See my response to Question 8(b) above. Idid not contribute to any guidelines that may have been issued by the Foundation,and to the best of my knowledge and recollection, my approval of any suchguidelines was never required for their adoption.

d. Additionally, if there were guidelines promulgated during yourboard service, did they include the limitation above decliningcoverage for unmarried pregnant women? What about the otherrestrictions on reproductive health options?

See my response to Questions 8(b) and (c) above.

It has been reported that Brett Talley, a Deputy Assistant Attorney General in the Office of Legal Policy who is responsible for overseeing federal judicial nominations—and who himself has been nominated to a vacancy on the U.S. District Court for the Middle District of Alabama—did not disclose to the Committee many online posts he had made on public websites.

a. Did officials at the Department of Justice or the White House discuss withyou generally what needed to be disclosed pursuant to Question 12 of theSenate Judiciary Questionnaire? If so, what general instructions were yougiven, and by whom?

Without disclosing specific advice by any attorneys, I understood that I was todisclose all responsive information truthfully and to the best of my ability.

b. Did Mr. Talley or any other individuals at the Department of Justice or theWhite House advise you that you did not need to disclose certain material,including material “published only on the Internet,” as required by Question12(a) of the Senate Judiciary Questionnaire? If so, please detail whatmaterial you were told you did not need to disclose.

It was and remains my understanding that I was required to disclose responsivematerial, including material "published only on the Internet," and I have done sotruthfully and to the best of my ability.

c. Have you ever maintained a public blog or public social media account,including on Facebook or Twitter? If so, during what time period? If so,please provide copies of each post and describe why you did notpreviously provide it to the Committee.

No, I have never maintained a public blog or public social media account. It was and remains my understanding that I was required to disclose responsive material, including material "published only on the Internet," and I have done so truthfully and to the best of my ability.

d. Have you ever posted commentary—under your own name or apseudonym—regarding legal, political, or social issues on public websitesthat you have not already disclosed to the Committee? If so, please providecopies of each post and describe why you did not previously provide it tothe Committee.

No, I have not posted commentary on legal, political, or social issues on publicwebsites either under my own name or a pseudonym. It was and remains myunderstanding that I was required to disclose responsive material, includingmaterial "published only on the Internet," and I have done so truthfully and tothe best of my ability.

e. Once you decided to seek a federal judicial nomination or became aware thatyou were under consideration for a federal judgeship, have you taken anysteps to delete, edit, or restrict access to any statements previously availableon the Internet or otherwise available to the public? If so, please provide theCommittee with your original comments and indicate what edits were made.

No, I have taken no such steps.

Please describe with particularity the process by which you answered these questions.

I received the questions from the Department of Justice in the evening of Wednesday, January 17, 2018. I reviewed the questions, performed limited research, personally drafted answers to all of the questions, solicited comments from the Department of Justice attorneys working on my nomination, and revised my draft answers as I deemed appropriate in light of those comments.

Senator Dick DurbinWritten Questions for Kurt Engelhardt, Howard Nielson and Barry Ashe

January 17, 2018

For questions with subparts, please answer each subpart separately.

Question for Barry Ashe

1. From 1994-2000 you represented the Tangipahoa Parish Board in litigation involving thedisclaimer that the Board required to be read before the teaching of evolution in publicschool classes. The disclaimer said that the lesson regarding the theory of evolution “shouldbe presented to inform students of the scientific concept and not intended to influence ordissuade the Biblical version of Creation or any other concept.” After a district court and theFifth Circuit held that the disclaimer violated the Establishment Clause and after the SupremeCourt denied certiorari in 2000, you said to the Houston Chronicle “those who do not adhereto the view of evolution as the origin of man are somehow second-class citizens in the schoolcommunity…Their view is not even acknowledged.” What did you mean by this quote?

As the school board's counsel in the case, I was expressing in this quotation my client'sdisappointment in the Supreme Court's decision to deny certiorari to hear the case, which felljust one vote shy and included a very rare dissenting opinion joined by the three justices whovoted to hear the case. The school board's view was that its disclaimer would make allmembers of the school community feel welcome, including those who might harbor doubtsabout the theory of evolution as an explanation of the origin of man (as opposed to a theoryfor the more limited scientific concept of the development of living organisms). The schoolboard was concerned that, without the disclaimer, this segment of the school communitymight believe that their viewpoint was not being heard. The quotation was meant to capture,on behalf of my client, the sentiment expressed by Justice Scalia in his dissent from thedenial of certiorari. See Tangipahoa Parish Board of Ed. v. Freiler, 530 U.S. 1251, 1254(2000) (Scalia, J., dissenting from denial of certiorari).

In the wake of the decision by the Fifth Circuit in Freiler and the Supreme Court's denial ofcertiorari in 2000, the school board was counseled to heed and, to my knowledge, has heededthe courts' mandate in the case. If confirmed as a judge, I would fully and faithfully applyFreiler and any other governing precedents of the Supreme Court and the Fifth Circuitconcerning the Establishment Clause.

Nomination of Barry W. Ashe to the United States District Court

For the Eastern District of Louisiana Questions for the Record

Submitted January 17, 2018

QUESTIONS FROM SENATOR WHITEHOUSE

1. During his confirmation hearing, Chief Justice Roberts likened the judicial role to that ofa baseball umpire, saying “'[m]y job is to call balls and strikes and not to pitch or bat.”

a. Do you agree with Justice Roberts’ metaphor? Why or why not?

I agree with Chief Justice Roberts' metaphor to the extent it means that judgesshould resolve disputes by applying the law to the facts of the cases before themand not by imposing the judges' own personal preferences. Only in this way willthe nation benefit to the fullest measure from the separation of powers and judicialindependence built into our constitutional structure.

b. What role, if any, should the practical consequences of a particular ruling play ina judge’s rendering of a decision?

If the law governing a particular case requires a judge to take into account thepractical consequences of a ruling, then the judge should do so. For example,the standard for entering a preliminary injunction requires a judge to consider,among other things, whether there is "a substantial threat that [a person] willsuffer irreparable harm if the injunction is not entered." Bluefield Water Ass'n,Inc. v. City of Starkville, 577 F.3d 250, 252-53 (5th Cir. 2009).

c. Federal Rule of Civil Procedure 56 provides that a court “shall grant summaryjudgment if the movant shows that there is no genuine dispute as to any materialfact” in a case. Do you agree that determining whether there is a “genuine disputeas to any material fact” in a case requires a judge to make a subjectivedetermination?

No. Under well-settled principles, a court must find that "[a] genuine dispute asto a material fact exists 'if the evidence is such that a reasonable jury could returna verdict for the nonmoving party.'" Rogers v. Bromac Title Servs., LLC, 755F.3d 347, 350 (5th Cir. 2014) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.242, 248 (1986)). That is an objective standard. The Supreme Court hasemphasized that "at the summary judgment stage the judge's function is nothimself to weigh the evidence and determine the truth of the matter but todetermine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249.

2. During Justice Sotomayor’s confirmation proceedings, President Obama expressed hisview that a judge benefits from having a sense of empathy, for instance “to recognizewhat it’s like to be a young teenage mom, the empathy to understand what it's like to bepoor or African-American or gay or disabled or old.”

a. What role, if any, should empathy play in a judge’s decision-making process?

A federal judge takes an oath to "administer justice without respect to persons, and do equal right to the poor and the rich." 28 U.S.C. § 453. Accordingly, in each case, the judge must apply the law to the facts; a judge's personal opinions and emotions must not lead the judge to favor one party over another. Judges are certainly human and experience a wide range of emotions, including empathy for individuals who are suffering. However, the judge must remain mindful of his or her oath and duty to "faithfully and impartially discharge and perform all the duties incumbent upon [him/her] ... under the Constitution and laws of the United States." Id.

b. What role, if any, should a judge’s personal life experience play in his or herdecision-making process?

Judges are human and having empathy for others – especially for those whoare marginalized or suffering or mistreated – is a natural and praiseworthyhuman response. It cannot, however, lead a judge to privilege one side of alegal dispute over the other, because that would violate the judge's oath to"administer justice without respect to persons, and do equal right to the poorand the rich, and … [to] faithfully and impartially discharge and perform allthe duties incumbent upon [the judge]." 28 U.S.C. § 453.

3. In your view, is it ever appropriate for a judge to ignore, disregard, refuse to implement,or issue an order that is contrary to an order from a superior court?

No.

4. What assurance can you provide this Committee and the American people that youwould, as a federal judge, equally uphold the interests of the “little guy,” specificallylitigants who do not have the same kind of resources to spend on their legalrepresentation as large corporations?

As reflected in my answer to Question 2 above, I am mindful of the oath I wouldtake as a judge to "administer justice without respect to persons, and do equal rightto the poor and the rich, and … [to] faithfully and impartially discharge and performall the duties incumbent upon [the judge]." 28 U.S.C. § 453. This oath wouldrequire me to uphold equally the interests of the "little guy" and the corporation,resolving the case before me on the basis of its merits and not the parties' status.

Moreover, my professional record and personal history should assure the Committeeand the American people that I will render decisions impartially and treat all personsthat come before the court with equal dignity and respect. In my legal career, I haverepresented a diverse group of clients, each of whom received the same level ofattention regardless of their race, background, socioeconomic status, or education.This included individuals who might be characterized as the "little guy," includingan injured seaman, a dyslexic student and her mother, and small business owners,among others. I always served these clients zealously and provided them with thesame level of respect, courtesy, and diligent representation as I did any large

corporate clients. In addition, throughout my legal career, I have assisted in advancing the programs of bar associations to provide legal and non-legal services to those less fortunate.

a. In civil litigation, well-resourced parties commonly employ “paper blizzard”tactics to overwhelm their adversaries or force settlements through burdensomediscovery demands, pretrial motions, and the like. Do you believe these tacticsare acceptable? Or are they problematic? If they are problematic, what can andshould a judge do to prevent them?

As recognized in well-established case law and in amendments to the FederalRules of Civil Procedure as far back as 1983 and as recent as 2015, "[a federalcourt] must apply the standards [of discovery] in an even-handed manner thatwill prevent use of discovery to wage a war of attrition or as a device to coercea party, whether financially weak or affluent." Fed. R. Civ. P. 26 AdvisoryCommittee Notes to 1983 and 2015 Amendments. Thus, the rules of courthave long recognized that such "paper blizzard" tactics are unacceptable. Inlike manner, it would be inappropriate to allow pretrial motions or the like tooverwhelm parties or force settlements as a result of their burdensomeness andapart from their merits. To prevent this kind of conduct, a judge should applythe rules of procedure as prescribed, including any and all considerations ofproportionality encompassed within the rules and standards for discovery andpretrial submissions.

Questions for the Record for Barry W. Ashe

Senator Mazie K. Hirono

1. As I mentioned at the hearing, as part of my responsibility as a member of the SenateJudiciary Committee and to ensure the fitness of nominees for a lifetime appointment tothe federal bench, I am asking nominees to answer the following two questions:

a. Since you became a legal adult, have you ever made unwanted requests forsexual favors, or committed any verbal or physical harassment or assault of asexual nature?

No, I have not.

b. Have you ever faced discipline, or entered into a settlement related to this kindof conduct?

No, I have not.

2. In a 2000 law review article you wrote, called Constitutional Law: The Fifth Circuit’sWar Against Religion in the Public Square, you argued that the “Fifth Circuit is waging awar against religion in the public square” based on five Fifth Circuit decisions.

a. Do you believe this “war against religion in the public square” is still going ontoday?

The phrase "war against religion in the public square" was used to evocativelydescribe a series of five decisions involving Establishment Clause or related issuesrendered by the Fifth Circuit in the 1999 – 2000 timeframe to which the LoyolaLaw Review's issue was then devoted. In each of the five cases, the Fifth Circuithappened to have ruled against the position espoused by advocates of religiousfreedom. Whether or not this was fairly characterized as a "war," it is unlikely(though I have not studied the question) that, in the years since the 1999 – 2000timeframe, the Fifth Circuit has dealt with this same number of significant anddifferent aspects of the Establishment Clause in a one or two-year period with thesame uniformity of result. In this sense, the "war" is not going on today.

However, let me be clear that it is my belief that, in resolving the cases, the FifthCircuit was faithfully performing its duty to interpret and apply the relevantconstitutional provisions and principles in a way as would lead to what the courtsaw as the correct result on the facts presented by each of the cases. The FifthCircuit most certainly continues to perform this duty today.

b. What was your intent in describing the Fifth Circuit’s decisions as a “waragainst” religion in the public square? Was it your view that the issuesaddressed—such as public funding of parochial education, school prayer, the useof disclaimers about teaching evolution in public schools, volunteer counselingby clergy in schools, and the use of school buildings for religious activity—were

being unfairly attacked?

Please see my response to Question 2(a) above.

3. You defended the Tangipahoa Parish Board of Education’s requirement that a“disclaimer” be read before evolution was taught in public schools. The Fifth Circuitfound that “the primary effect of the disclaimer is to protect and maintain a particularreligious viewpoint, namely belief in the Biblical version of creation.” After the districtcourt and the Fifth Circuit found that using the disclaimer violated the EstablishmentClause, you pursued this case all the way to the Supreme Court, which denied furtherreview.

a. Is it your view that the Establishment Clause permits public schools to presentcreationism as an alternative theory to evolution?

In Edwards v. Aguillard, 482 U.S. 578 (1987), the Supreme Court applied theEstablishment Clause to invalidate Louisiana's Balanced Treatment Act, which hadrequired that creation science be taught in public schools if evolution were taught, orthat evolution not be taught at all. The Court noted, however, that "teaching a varietyof scientific theories about the origins of humankind to schoolchildren might bevalidly done with the clear secular intent of enhancing the effectiveness of scienceinstruction." Id. at 594. As a district judge, I would fully and faithfully apply allbinding precedents and laws concerning this question.

b. Do you believe that the Fifth Circuit’s decision was incorrect?

As a nominee, under the canons of judicial ethics, my personal beliefs about a bindingdecision of the Fifth Circuit are irrelevant. Instead, I am duty-bound to apply all suchbinding precedents and laws and will fully and faithfully do so.

Questions for the Record from Senator Kamala D. HarrisSubmitted January 17, 2018

For the Nominations of:

Barry W. Ashe, to be United States District Judge for the Eastern District of Louisiana

Howard C. Nielson, Jr., to be United States District Judge for the District of Utah

James R. Sweeney II, to be United States District Judge for the Southern District of Indiana

1. District court judges have great discretion when it comes to sentencing defendants. It isimportant that we understand your views on sentencing, with the appreciation that eachcase would be evaluated on its specific facts and circumstances.

a. What is the process you would follow before you sentenced a defendant?

If confirmed to serve as a district court judge, I would approach sentencingdecisions with a great deal of preparation, thought, and consideration. I wouldfollow the statutes, rules, and procedures required by law. Prior to sentencing, Iwould consider the Presentence Investigation Report, the Advisory SentencingGuidelines, the statutory sentencing factors set out at 18 U.S.C. § 3553(a), thearguments of counsel, any written or oral statements made by victims, and anyrequests for leniency by the defendant and/or others. At each sentencing hearing,I would do my best to impose a sentence that is "sufficient, but not greater thannecessary" to achieve the sentencing purposes that Congress enumerates at 18U.S.C. § 3553(a)(2).

b. As a new judge, how do you plan to determine what constitutes a fair andproportional sentence?

See my response to Question 1(a) above.

c. When is it appropriate to depart from the Sentencing Guidelines?

"Departure" is a term of art used in the Sentencing Guidelines. Part K of Section5 of the Guidelines sets forth numerous circumstances where it may beappropriate for the sentencing judge to "depart" by imposing a sentence below orabove the sentencing range otherwise called for by the Guidelines. It would notbe appropriate for the sentencing judge to impose a departure without firstproviding the parties reasonable advance notice that the judge is contemplatingsuch a departure. Fed. R. Crim. P. 32(h). Additionally, a sentencing judge mayimpose a sentence above or below the range called for by the Guidelines by wayof a variance. While a departure is based on the circumstances listed in Part K ofSection 5 of the Guidelines, a variance is justified by the factors listed in 18U.S.C. § 3553(a). A district judge's authority to sentence by variance is grounded

in the Supreme Court's holding that the Guidelines are merely advisory. See United States v. Booker, 543 U.S. 220 (2005). Regardless of the guideline range, a judge must impose a sentence that is "sufficient, but not greater than necessary" to achieve the sentencing purposed that Congress enumerates at 18 U.S.C. § 3553(a)(2).

d. Judge Danny Reeves of the Eastern District of Kentucky – who also serves onthe U.S. Sentencing Commission – has stated that he believes mandatoryminimum sentences are more likely to deter certain types of crime thandiscretionary or indeterminate sentencing.1

i. Do you agree with Judge Reeves?

The inclusion of mandatory minimum sentences in criminal statutes fallswithin the purview of Congress under Article 1 of the United StatesConstitution. As a nominee and prospective district judge, it would beinappropriate for me to publicly comment on matters of legislative policyor to address political questions. Additionally, future cases may comebefore me involving such statutes. It would compromise the appearanceof my impartiality in any such future cases to publicly comment on thepropriety and efficacy of the statutes at the center of those cases. SeeCanon 3(A)(6), Code of Conduct for United States Judges. If confirmedto be a district judge, I will faithfully apply all federal statutory andguideline sentencing provisions, as interpreted by the Supreme Court andthe Fifth Circuit.

ii. Do you believe that mandatory minimum sentences have provided fora more equitable criminal justice system?

See my response to Question 1(d)(i) above.

iii. Please identify instances where you thought a mandatory minimumsentence was unjustly applied to a defendant.

See my response to Question 1(d)(i) above.

iv. Former-Judge John Gleeson has previously criticized mandatoryminimums in various opinions he has authored, and has takenproactive efforts to remedy unjust sentences that result frommandatory minimums.2 If confirmed, and you are required to imposean unjust and disproportionate sentence, would you commit to taking

1 https://www.judiciary.senate.gov/imo/media/doc/Reeves%20Responses%20to%20QFRs1.pdf2 See, e.g., “Citing Fairness, U.S. Judge Acts to Undo a Sentence He Was Forced to Impose,” NY Times, July 28, 2014, https://www nytimes.com/2014/07/29/nyregion/brooklyn-judge-acts-to-undo-long-sentence-for-francois-holloway-he-had-to-impose html

proactive efforts to address the injustice, including:

1. Describing the injustice in your opinions?

Decisions to include mandatory minimum sentences in criminalstatutes fall within the authority and discretion of Congress underArticle I of the United States Constitution. While judges havecriticized statutes that lead to unjust results in extreme cases,judges must generally be careful not to encroach upon the purviewof Congress to make such policy decisions. See also my responseto Question 1(d)(i) above.

2. Reaching out to the U.S. Attorney and other federalprosecutors to discuss their charging policies?

Decisions as to what charges to bring before a grand jury fallwithin the authority and discretion of the United States Attorneyunder Article II of the United States Constitution. Just as judgesmust be careful not to encroach upon the authority the Constitutionaffords Congress to make legislative decisions, they must also becareful to not encroach upon the deference afforded to the UnitedStates Attorney to make charging decisions consistent with theseparation of powers enshrined in the Constitution. That said, Ibelieve that in extreme cases, a judge may discuss such decisionswith the United States Attorney's office.

3. Reaching out to the U.S. Attorney and other federalprosecutors to discuss considerations of clemency?

"Federal clemency is exclusively executive." Harbison v. Bell,556 U.S. 180, 187 (2009); see also Ohio Adult Parole Authority v.Woodard, 523 U.S. 272, 280-81 (1998) (executive clemency is "amatter of grace" that allows "the executive to consider a widerange of factors not comprehended by earlier judicial proceedingsand sentencing determinations"); Faulder v. Texas Bd. of Pardons& Paroles, 178 F.3d 343 (5th Cir. 1999) ("[P]ardon andcommutation decisions are not traditionally the business of courts…"). Thus, if federal judges reach out to the United StatesAttorney's office regarding clemency, they must do so withsubstantial deference to the executive's authority over suchdecisions.

e. 28 U.S.C. Section 994(j) directs that alternatives to incarceration are“generally appropriate for first offenders not convicted of a violent orotherwise serious offense.” If confirmed as a judge, would you commit totaking into account alternatives to incarceration?

Yes. If confirmed as a district court judge, I will assess the prudence of a sentence other than imprisonment in appropriate cases where permitted by the applicable statutes and warranted by the facts of the case.

2. Judges are one of the cornerstones of our justice system. If confirmed, you will be in aposition to decide whether individuals receive fairness, justice, and due process.

a. Does a judge have a role in ensuring that our justice system is a fair andequitable one?

Yes. A judge takes an oath to administer justice faithfully and impartially withoutrespect to persons, and do equal right to the poor and to the rich. 28 U.S.C. § 453.A judge should take this commitment very seriously, and if I am confirmed as adistrict court judge, I pledge to do so.

b. Do you believe that there are racial disparities in our criminal justicesystem? If so, please provide specific examples. If not, please explain why not.

Racial disparities have all too often plagued our criminal justice system. I havenot conducted sufficient research or investigation to understand the prevalence ofracial disparities in our criminal justice system today. An important first step incombatting such disparities is that a judge should treat every person that comesinto the courthouse with equal courtesy, dignity, and respect and should apply thelaw without favor or prejudice.

3. If confirmed as a federal judge, you will be in a position to hire staff and law clerks.

a. Do you believe that it is important to have a diverse staff and law clerks?

Yes. It is important to have a chambers staff and law clerks with a range ofbackgrounds, life experiences, viewpoints, talents, and interests. As a districtcourt judge, I would give serious consideration to all qualified applicants forpositions on my staff regardless of their age, gender, race, color, national origin,or religion.

b. Would you commit to executing a plan to ensure that qualified minoritiesand women are given serious consideration for positions of power and/orsupervisory positions?

Yes. When reviewing applications and conducting interviews for positions at mylaw firm, I have ensured that the firm does not discriminate against applicantsbased on their age, gender, race, color, national origin, or religion. I haveencouraged law firm decisions to hire minorities and women. As a district courtjudge, I would ensure that all qualified applicants for positions over which I have

hiring authority are given serious consideration without bias or prejudice.